The Supreme Court: A Modest Proposal

Once again the nation has suffered through the process of a Supreme Court nomination. Having done so, we can now either sit back and wait in dread for the next one, or we can consider modification of probably the most divisive process in politics, save for presidential elections.

Senate Majority leader McConnell has played an instrumental role in moving the process to the point we are at today. His actions were taken not out of desire, but out of necessity. When your back is to the wall, it is either fight or flight. Hats off to McConnell for his decision to fight.

The Garland non-review was a courageous position, one advocated by Democrats in the past. The decision to extend the Reid rule to SCOTUS nominees was also a sign of courage. These decisions though have been adamantly opposed by the opposition, but taking two sides on a position is part and parcel to the post for Democrats.

As much as I approve of the results attained by McConnell’s actions, I am also of the opinion that this is not a process that can continue, if we as a nation are going to have any hope of reaching amicable agreements on future nominees.

How did this process go from a justice, such as Anthony Kennedy receiving a unanimous approval (97-0 in 1988), to the point we are at today?

In 2009 I wrote a piece on Kennedy attempting to point out the flip-side of the ‘Lion of the Senate’. From that piece:

Another person to run afoul of Teddy was the eminently qualified Supreme Court nominee, Robert Bork, a strong conservative intellectual with impeccable credentials. However, Bork was naive; he actually trusted that Democrats would play fair. Mr. Bork was about to learn a difficult life lesson as he came up against Teddy, who did not have fairness in mind, after all, he is a Kennedy.

Ted lying in wait, blindsided Bork with a sucker punch, one which was as vicious as has ever been used in politics. A full 25 minutes after the nomination was announced, Teddy launched his prepared attack, characterizing Bork as racist, anti-feminist, an extremist and one who longed for the ‘good old days’ of ‘Jim Crow’ when Blacks knew their place.

Having won a victory, the Democrats were not up for a second fight and Bork’s replacement, Anthony Kennedy sailed through.

The Clarence Thomas hearings were equally as vicious three short years later, and again it was Ted Kennedy who led the assault.

Since the Thomas hearings, nominees of a Democrat president have sailed through at an average 80-20 clip. Those nominated by a Republican have not had such smooth sailing, with an average approval of 56-44. One could claim that this is due to Democrat presidents nominating more ’mainstream’ candidates. This thinking, of course, would be wrong, as Elena Kagan and Sonia Sotomayor are hardly swimming in the middle of the river.

A more logical assessment would be that Republicans are far more willing to let the process play out, with presidents, generally speaking, being allowed to put forward their candidates of choice. Since 1900 only two Democrat nominees have been withdrawn or rejected. During the same period seven nominees of Republican presidents have had a similar fate.

The Senate, once collegial, has turned irreversibly adversarial, much to the detriment of the nation.

The recent nominations have demonstrated that Republicans have awakened, matching the seriousness with which the Democrats have long played the game. Not only have they awakened, they have won.

The Democrats will not take this well.

Given the above the following is offered for consideration:

Future justices would be nominated for a defined term, perhaps twelve years. At the end of his term a justice would either retire or be reapproved based on a vote in the Senate. Sitting justices would be ‘grandfathered’ in, so as to stagger the years of replacement nominations.

This system would result in several advantages, in that a fixed time frame would allow the Supreme Court record of a justice to be reviewed prior to reconsideration. Additionally, shorter durations would reduce the level of animus in fighting for future openings.

One drawback would be the instilling of politics into judicial decisions. However, we are kidding ourselves if we believe that is absent today.

The drawback above is offset by the possibilities presented if the twelve-year plan had long been in place: Ruth Ginsberg would have been reconsidered in 2005 and again in 2017, Clarence Thomas in 2003 and again in 2015, Kennedy in 2012, Roberts in 2017.

Justices who failed to live up to the expectations of their nominations would lose support. Justices such as David Souter would not have been re-upped. Certainly Roberts’ position would be at risk. Also aged and infirm Justices like Ginsberg would be allowed to sleep peacefully in retirement instead of at the bench or at State of the Union speeches.

The Senate would become the deciding factor in approval of a second term, while all presidents would almost certainly be assured of at least one and likely multiple nominees.

The Democrats will be bitter over Merrick Garland for as long as many Republicans are bitter over Robert Bork.

It is time that the bitterness of these squabbles be reduced. It is time for a modification of the process to be seriously considered.

The above outline is one possibility. Other options may have viability as well. Whatever method is ultimately decided upon; it has to be better than that which is now in place.

Once again the nation has suffered through the process of a Supreme Court nomination. Having done so, we can now either sit back and wait in dread for the next one, or we can consider modification of probably the most divisive process in politics, save for presidential elections.

Senate Majority leader McConnell has played an instrumental role in moving the process to the point we are at today. His actions were taken not out of desire, but out of necessity. When your back is to the wall, it is either fight or flight. Hats off to McConnell for his decision to fight.

The Garland non-review was a courageous position, one advocated by Democrats in the past. The decision to extend the Reid rule to SCOTUS nominees was also a sign of courage. These decisions though have been adamantly opposed by the opposition, but taking two sides on a position is part and parcel to the post for Democrats.

As much as I approve of the results attained by McConnell’s actions, I am also of the opinion that this is not a process that can continue, if we as a nation are going to have any hope of reaching amicable agreements on future nominees.

How did this process go from a justice, such as Anthony Kennedy receiving a unanimous approval (97-0 in 1988), to the point we are at today?

In 2009 I wrote a piece on Kennedy attempting to point out the flip-side of the ‘Lion of the Senate’. From that piece:

Another person to run afoul of Teddy was the eminently qualified Supreme Court nominee, Robert Bork, a strong conservative intellectual with impeccable credentials. However, Bork was naive; he actually trusted that Democrats would play fair. Mr. Bork was about to learn a difficult life lesson as he came up against Teddy, who did not have fairness in mind, after all, he is a Kennedy.

Ted lying in wait, blindsided Bork with a sucker punch, one which was as vicious as has ever been used in politics. A full 25 minutes after the nomination was announced, Teddy launched his prepared attack, characterizing Bork as racist, anti-feminist, an extremist and one who longed for the ‘good old days’ of ‘Jim Crow’ when Blacks knew their place.

Having won a victory, the Democrats were not up for a second fight and Bork’s replacement, Anthony Kennedy sailed through.

The Clarence Thomas hearings were equally as vicious three short years later, and again it was Ted Kennedy who led the assault.

Since the Thomas hearings, nominees of a Democrat president have sailed through at an average 80-20 clip. Those nominated by a Republican have not had such smooth sailing, with an average approval of 56-44. One could claim that this is due to Democrat presidents nominating more ’mainstream’ candidates. This thinking, of course, would be wrong, as Elena Kagan and Sonia Sotomayor are hardly swimming in the middle of the river.

A more logical assessment would be that Republicans are far more willing to let the process play out, with presidents, generally speaking, being allowed to put forward their candidates of choice. Since 1900 only two Democrat nominees have been withdrawn or rejected. During the same period seven nominees of Republican presidents have had a similar fate.

The Senate, once collegial, has turned irreversibly adversarial, much to the detriment of the nation.

The recent nominations have demonstrated that Republicans have awakened, matching the seriousness with which the Democrats have long played the game. Not only have they awakened, they have won.

The Democrats will not take this well.

Given the above the following is offered for consideration:

Future justices would be nominated for a defined term, perhaps twelve years. At the end of his term a justice would either retire or be reapproved based on a vote in the Senate. Sitting justices would be ‘grandfathered’ in, so as to stagger the years of replacement nominations.

This system would result in several advantages, in that a fixed time frame would allow the Supreme Court record of a justice to be reviewed prior to reconsideration. Additionally, shorter durations would reduce the level of animus in fighting for future openings.

One drawback would be the instilling of politics into judicial decisions. However, we are kidding ourselves if we believe that is absent today.

The drawback above is offset by the possibilities presented if the twelve-year plan had long been in place: Ruth Ginsberg would have been reconsidered in 2005 and again in 2017, Clarence Thomas in 2003 and again in 2015, Kennedy in 2012, Roberts in 2017.

Justices who failed to live up to the expectations of their nominations would lose support. Justices such as David Souter would not have been re-upped. Certainly Roberts’ position would be at risk. Also aged and infirm Justices like Ginsberg would be allowed to sleep peacefully in retirement instead of at the bench or at State of the Union speeches.

The Senate would become the deciding factor in approval of a second term, while all presidents would almost certainly be assured of at least one and likely multiple nominees.

The Democrats will be bitter over Merrick Garland for as long as many Republicans are bitter over Robert Bork.

It is time that the bitterness of these squabbles be reduced. It is time for a modification of the process to be seriously considered.

The above outline is one possibility. Other options may have viability as well. Whatever method is ultimately decided upon; it has to be better than that which is now in place.